DISREGARD THIS BLOG: WHY INSTRUCTIONS TO “DISREGARD” EVIDENCE OFTEN FAIL

Let’s try an experiment: For the next 5 minutes, don’t think about Kim Kardashian. Keep a tally of each time your mind slips and you do think about her, but again: don’t think about her.

How did you do? Of course Kim Kardashian might think this an impossible task, but I also would bet you were unable to not think about her. Cognitive Psychologist Dan Wegner famously asked participants in an experiment to do this. The research was conducted in the 80s, so he didn’t ask people to not think of Kim Kardashian, but instead told them not to think of a white bear…though that’s less fun. People who are given this task perform significantly worse than those who are told nothing – meaning that you probably thought about Kim Kardashian just now more than the average person who wasn’t specifically told not to think about her. The reason we can’t help but think of Kim Kardashian when we’re actively trying not to think about her is due to what Wegner called “the ironic effects of thought suppression.” Essentially, in order to know whether we are not thinking about something, we actually have to think about it. This is one of the reasons a judge’s instruction to “disregard” evidence rarely works. In fact, such an instruction can often have a boomerang effect, wherein jurors pay more attention to evidence they are supposed to ignore.

Empirical research confirms that jurors struggle to disregard inadmissible evidence. In our experience as jury consultants, we find this to be true. When we are conducting a shadow jury or post-trial interviews, shadow jurors and actual jurors often reveal the great impact of an inadmissible fact that they heard at some point during trial. There is often an explicit understanding that this fact had an impact (e.g., a juror will say, “I know we were supposed to disregard that, but…”), but the inadmissible fact more likely acts to influence the juror’s decision subtly. In my experience, this is one of the great values of a shadow jury: you get to know the impact of any inadmissible facts and can tailor your trial strategy to combat them.

In trial, we recommend carefully picking your battles when you object, knowing that an objection and a subsequent limiting instruction from the judge can actually pique jurors’ attention and heighten the importance of that testimony. Obviously you want to make sure that your opposing counsel adheres to motions in limine, and sometimes objections and a request for a limiting instruction are essential, especially for a potential appeal. However, always bear in mind the impact on the jury. If you worry that the jury will be influenced by a fact that should not have been allowed, it is best to address it head on. In closing, don’t hide from the fact, but instead explain to the jury why the fact should not be considered and remind them to hold their fellow jurors accountable if one of them tries to introduce the fact into deliberations.